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1833.

The KING against HOLDEN.

sarily increase expense, as well as delay the proceedings.
There is no provision by law for the expense of recon-
veying the defendants, if convicted, to the original county.
The statute 27 G. 2. c. 3. does not apply. As to the
prejudice apprehended, that must have now abated;
and, since the indictment has been removed into this
Court, the jury will be taken from the county at large,
(6 G. 4. c. 50. s. 13.) and not from the liberty, to which
the allegations of prejudice in the affidavits chiefly apply.
In Rex v. Mead (a), an application for a certiorari to
remove an indictment for murder, in order that it might
be tried in a different county from that in which the
bill had been found, was rejected by this Court. The
same appears to have been done in Rex v. Elford (b).
In Rex v. Thomas (c), an indictment for murder was
removed into this Court, on application made on behalf
of the defendant, but that was from the sessions for the
city of Rochester, an inferior and comparatively limited
jurisdiction. And so in Rex v. Fawle (d), where a cer-
tiorari was granted, the removal was from the sessions,
and the felony does not appear to have been capital.
An application of this kind for a suggestion was made
without success, in Rex v. Penprase 'and Others(e), in
last Hilary term. [Littledale J. That case was tried
at Nisi Prius. So also was Rex v. Ellis (g), where the
bill had been found at the gaol delivery for the city of
Exeter, and was removed into this Court by certiorari.
Patteson J. There was a similar case at Maidstone, last
assizes.] The prosecutor might further contend that he
was entitled to have the certiorari quashed, as having

(a) 3 D. & R. 301.
(c) 4 M. & S. 442.
(e) 4 B. & Ad. 575.

(b) 2 Str. 877.
(d) 2 Ld. Ray. 1452.
(g) 6 B. & C. 145.

been

been obtained without any rule to shew cause, and
without notice to him, contrary to the usual practice,
Rex v. Farole (a), Rex v. The Duchess of Kingston (b),
Rex v. Thomas (c), Rex v. Hunt (d), Hawk. P. C.
book ii. c. 27. s. 27. But it is not desired to quash
the certiorari, or discharge the present rule, if the de-
fendants be put under such terms as to costs as will
leave the prosecutor in no worse situation than if the
case had been proceeded upon in the ordinary way.
There is no legislative enactment on the subject, but an
analogy may be drawn from the statutes 5 & 6 W. & M.
c. 11. s. 3. and 38 G. 3. c. 52. s. 8.: and terms of this
kind were imposed on the defendants in Rex v. Hunt (e),
and in the late case of Rex v. Hodgson (g), where the place
of trial was changed, by suggestion, upon indictments for
misdemeanor. The reasonable costs to be paid to the
prosecutor in this case, would be those already incurred;
the costs of the trial in any event, with the addition of
those occasioned by the removal; the costs in this
Court, including those of the present application; the
costs of reconveying the defendants, if convicted, to the
original county; and any others which the prosecutor
may incur after the judgment. [Denman C. J. The
costs of the trial must be in the discretion of the Judge
who tries the indictment; and they are not payable by
the defendant, but by the county.] Supposing that the
terms required by the prosecutor were granted, many
inconveniencies might still arise if the Court were to
remove the case to a different circuit; as, for instance,

(a) 2 Ld. Ray. 1452. (c) 4 M. & S. 442.

(e) Hilary term 1820.

(g) Hilary term 1881.

(b) Coup. 283.
(d) 3 B. & 4. 444.

Indictment for misdemeanor. Suggestion, for trying the issue in London instead of Yorkshire.

1833.

The KING against HOLDEN.

A a 4

in

1833.

The KING against HOLDEN.

in case a witness were to die, the difficulty of obtaining the depositions, which are now in the legal custody of the clerk of assize of the Norfolk circuit.

Sir James Scarlett and B. Andrews contrà. With respect to costs, the defendants will accede to any terms the Court may think proper; and the depositions may, without difficulty, be removed into this Court. There is nothing new in the trial of felonies at nisi prius. The statute 14 Hen. 6. c. 1., enabling justices of nisi prius to give judgment of a man attainted or acquitted of felony, conferred upon them no new jurisdiction as to trying, but was only passed in order that they might give judgment as well as try, which before they could not do; and that statute shews that they might even try cases of treason. The power of removing cases of felony exists at common law, and is part of the supreme jurisdiction belonging to this Court, though not exercised unless under very special circumstances. But it has been exercised, even at the instance of defendants. Rex v. Thomas (a) is a decisive authority on this case. No difference can be shewn in principle between removing a case of felony and one of misdemeanor: in the discretion of the Court, they may not be viewed alike, but there is no rule of law confining the trial of felonies to the proper county, which would not equally extend to misdemeanors. A case of felony was lately removed from the sessions for the town and county of Southampton (b). [Patteson J. An application was there made before me in the bail-court for a certiorari, and I thought I could not grant it, as the case arose in a

(a) 4 M. & S. 442. (b) Rex v. Russell, 4 B. & Ad. 576. note (a).

town

town which was a county of itself, and therefore a particular course of proceeding was directed by 38 G. 3. c. 52. But the prosecutor undertook, upon terms, to try in the county at large.] The indictment in Rex v. Ellis (a) was removed by certiorari from the city of Exeter into the county of Devon. [Denman C. J. There is a provision in 38 G. 3. c. 52. s. 10., that the statute shall not extend to the criminal jurisdiction of Exeter, unless in cases of indictment removed from thence into the King's Bench by certiorari.] That leaves the jurisdiction of the King's Bench as it stood at common law, and by that jurisdiction the indictment in Rex v. Ellis was removed; the ground being that an impartial trial could not be had in the city. In Rex v. Thomas (b) the place of trial was changed from the town of Rochester to the county of Kent. In Rex v. Mead (c) the Court would have removed the indictment (which was for murder), or granted a trial at bar, but for the special circumstances. And on principle, if an indictment for misdemeanor may be removed on the ground of prejudice, à fortiori, a case of felony ought to be so removeable, where even the life of the party may be at stake. The Court has, from the earliest times, exercised a power of removing civil causes into counties where the ground of action did not arise, and this, not because such cases are, for this purpose, distinguishable from others, but by reason of the general jurisdiction which the Court possesses, to dispense justice throughout the country. The form of suggestion, in a case of misdemeanor, is given in Rex v. Hunt (d): the county to which the removal is made, is stated to be the county

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1833.

The KING against HOLDEN.

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The KING against HOLDEN.

next adjoining. [Denman C. J. In a case from Nottingham (a), Kent was suggested, by consent, to be the next adjoining county. The Solicitor-General, amicus curiæ; in the Bristol case (b), Berkshire was suggested to be the next adjoining county.] On the suggestion here offered, a trial at bar might be ordered, if necessary. The argument of inconvenience was urged in Farewether's case (c), where a certiorari had been awarded to the justices of assize of Suffolk, to remove an indictment against a justice of that county for common barratry; and upon discussion as to a rule for a trial at bar, and motion made on behalf of the crown that it should be tried in the county, Keeling, clerk of the crown, said, "That divers precedents have been of such trials, upon indictments in banco, without any consent of the parties, and against the will of the prosecutors, and in more remote counties;" which appears to be approved of by the Court.

DENMAN C. J. I apprehend that the power of changing the place of trial whenever it is necessary for the purpose of securing, as far as possible, a fair investigation, is a part of the jurisdiction of this Court; and that that power may be exercised, where it is absolutely necessary, in cases of felony. Instances have occurred in which this has been done for the purpose of removing the trial from limited jurisdictions; but there does not appear to be any in which it has been done with respect to a county at large: and I should think such a proceeding could not be necessary where the removal must be from one great county to another.

(a) W. Sacheverell's case, 10 Howell's State Trials, 30.
(b) Rex v. Pinney, 3 B. & Ad. 947.

Where it

(c) Cro. Car. 348.

has

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